October 3, 2022

Volume XII, Number 276

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October 03, 2022

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Workplace Fairness Act Set to Move to the House Floor

On Oct. 26, 2011, the House Committee on Education and the Workforce voted to send the Workplace Democracy and Fairness Act (H.R. 3094) to the House floor. The proposed legislation is designed to rein in the activist National Labor Relations Board (NLRB) by counteracting the effects of its recent Specialty Healthcare decision. The proposed legislation also aims to prevent the NLRB from pursuing its proposed changes to the representation election process. While it's still early in the legislative process for this bill, H.R. 3094 is expected to go to the House floor and be voted on sometime in the winter.

The NLRB had long required that employees share "a sufficient community of interest" when determining which employees should be included within a bargaining unit. However, in Specialty Healthcare, the NLRB re-evaluated this standardand shifted the burden to employers to prove that excluded employees share an "overwhelming community interest" with the petitioned-for employees. As a result, the NLRB laid the groundwork for unions to more narrowly tailor bargaining units around pro-union sentiment (seeking to organize, for example, only a fragment of the workforce in the hopes of establishing an initial toehold).

Among other things, the proposed legislation would amend the National Labor Relations Act by requiring that the NLRB return to the "sufficient community of interest" standard.  In determining whether employees share a sufficient community of interest, the proposed legislation requires the NLRB to consider eight separate factors , including: (1) similarity of wages, benefits, and working conditions; (2) similarity of skills and training; (3) centrality of management and common supervision; (4) extent of interchange and frequency of contact between employees; (5) integration of the work flow and interrelationship of the production process; (6) the consistency of the unit with the employer's organizational structure; (7) similarity of job functions and work; and (8) the bargaining history in the particular unit and the industry.

The Act also aims to prevent the NLRB from pursuing its proposed rules designed to expedite the representation election process. Among other things, the proposed legislation provides employers at least 14 days to prepare their case before the first hearing on the matter. Additionally, the legislation mandates that no union election be held in fewer than 35 calendar days following the filing of an election petition. Finally, not earlier than seven days after the NLRB has determined the appropriate unit of employees, the legislation requires that the NLRB receive from the employer a list of all eligible voters and make the list available to the union.

© 2022 BARNES & THORNBURG LLPNational Law Review, Volume I, Number 307
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